Dave Chivers v. National Steel Car Ltd. and John Durlov, 2012 HRTO 1150

Human Rights Tribunal of Ontario

B E T W E E N:

Dave Chivers

Applicant

-and-

National Steel Car Ltd. and John Durlov

Respondents

-and-

United Steelworkers Local 7135

Intervenor

INTERIM DECISION

Adjudicator: Judith Keene

Date: June 12, 2012

Citation: 2012 HRTO 1150

Indexed as: Chivers v. National Steel Car Ltd.

WRITTEN SUBMISSIONS

Dave Chivers, Applicant

Grantley Howel, Representative

USW Local 7135, Intervenor

Robert Champagne, Counsel

Introduction

1This is an Interim Decision in respect of an Application filed on December 6, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability, and an allegation of reprisal. The Decision deals with deferral to a grievance arbitration and a request to intervene.

Deferral

2The Application noted a pending grievance. On March 1, 2012, the Tribunal issued a Notice of Intent to Defer under Rule 14.2 of its Rules of Procedure, as it appears that the applicant had filed a grievance dealing with the subject-matter of the Application. The applicant’s Union (United Steelworkers Local 7135) was given notice of the application as an affected organization. The parties and the Union were invited to make written submissions on why the Application should, or should not be deferred.

3The applicant’s representative and the Union responded, indicating that deferral would be appropriate pending the resolution of the grievance. It appears from some correspondence with the Tribunal from the applicant's representative dated May 3, 2012, that the applicant believes that the respondents did file a response on this issue and that he had not been copied with the response. However, the respondents did not file a Response to the Notice, and the time for doing so has passed.

4The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party (Code s.45; Rule 14.1). he initial consideration for the Tribunal in deciding whether or not to defer consideration of an Application is whether the same facts and issues are being raised before another decision-maker with the authority to deal with issues arising under the Code.

5In the circumstances of this case, the Tribunal orders the deferral of this Application pending the conclusion of the grievance arbitration process. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievances have been concluded.

Request to Intervene

6The Union filed a request to intervene, copied to both the applicant and the respondents, on March 30, 2012. The parties to this Application have not responded to the Union’s Request and the time for doing so has elapsed.

7The Union seeks to intervene in the Application on the basis that it may be affected by any remedy ordered by the Tribunal or by any settlement reached by the applicant and the respondents at mediation. The Union indicates that it has relevant information to provide regarding issues raised by the applicant in the Application.

8The Tribunal indicated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, that:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it

9I am satisfied that the Union has the requisite interest in this Application and the Union is accordingly granted leave to intervene. The scope of the Union’s intervention may be determined, if the matter reaches a hearing, by the adjudicator hearing the matter

10I am not seized of this matter.